This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations, based on a
stipulation of facts by the parties, who have agreed that no material issue of
fact exists. The General Counsel and the Respondent filed briefs.(*) The Respondent also filed a motion to strike parts of
the General Counsel's brief to the Authority, and the General Counsel filed an
opposition to the Respondent's motion.

The complaint alleges that the Respondent violated section 7116(a)(1),
(5), and (6) of the Federal Service Labor-Management Relations Statute (the
Statute) by implementing revisions to the Respondent's administrative manual
concerning firearms policy at a time when negotiations as to those revisions
were at impasse and the matter was pending before the Federal Service Impasses
Panel (the Panel). For the reasons stated below, we find that the Respondent
committed the unfair labor practices alleged in the complaint.

II. Facts

At all times material, the National Border Patrol Council and the
National Immigration and Naturalization Service Council (collectively referred
to as the Councils) have been the exclusive representatives of nationwide
bargaining units of the Respondent's employees.

Between October 11, 1989, and October 20, 1989, the Respondent and the
Councils engaged in negotiations over the Respondent's proposed revisions to
its Administrative Manual, Section 4210, Service Firearms Policy. On October
20, 1989, at a meeting with a mediator from the Federal Mediation and
Conciliation Service (FMCS), the mediator and the parties agreed that further
efforts at mediation would serve no purpose and that mediation had failed. Six
proposals remained in dispute between the parties. At the end of the meeting,
the Respondent informed the Councils' representatives that the Respondent: (1)
intended to implement all of the proposed revisions to the firearms policy on
November 1, 1989, including all agreed-upon matters; and (2) "questioned its
duty to bargain with regard to the six union proposals remaining in dispute."
Stipulation, paragraph 9.

On October 24, 1989, the Councils filed a request for assistance with
the Panel concerning the parties' negotiations, describing the six proposals
remaining in dispute. Also on October 24, 1989, the Councils notified the
Respondent that they had invoked the assistance of the Panel as to the six
proposals and "insisted that the implementation of those portions of the
revised Firearms Policy where agreement had not been reached be held in
abeyance pending the final resolution of the matter[s]" before the Panel.
Id., paragraph 11.

On November 1, 1989, the Respondent implemented the entire revised
firearms policy, including the portions of the revised policy that related to
the six proposals before the Panel. The parties stipulated that the Councils:
(1) agreed that the Respondent could implement the portions of the revised
firearms policy on which the parties had agreed; but (2) did not agree that the
Respondent could implement the portions of the revised firearms policy that
were related to the six proposals before the Panel.

On November 9, 1989, the Respondent advised the Panel that it
considered the six proposals nonnegotiable. On December 11, 1989, the Panel
declined to assert jurisdiction over the dispute on the basis that the
obligation to bargain between the parties over the six proposals first had to
be resolved in an appropriate forum before a determination could be made
whether the parties, in fact, had reached an impasse.

Between December 23, 1989, and February 26, 1990, the Councils filed
petitions for review with the Authority seeking a determination as to the
negotiability of the six proposals. On April 30, 1991, the Authority issued its
decision in American Federation of Government Employees, National Border
Patrol Council and National Immigration and Naturalization Service Council and
U.S. Department of Justice, Immigration and Naturalization Service, 40 FLRA
521 (1991) (AFGE, INS). In AFGE, INS, the Authority dismissed the
petition for review as to the first sentence of Proposal 1, the first four
sentences of Proposal 2, and Proposals 3, 4, and 6. The Authority ordered the
Respondent, upon request, to bargain over the remaining portions of Proposals 1
and 2 and over Proposal 5. On June 25, 1991, the Respondent filed a petition
for review of the Authority's decision with the U.S. Court of Appeals for the
Fifth Circuit as to those matters that the Authority found negotiable. U.S.
Department of Justice, Immigration and Naturalization Service v. FLRA, No.
91-4525 (5th Cir. filed June 25, 1991) (INS v. FLRA).

The parties stipulated that the negotiability of the six proposals was
decided by the Authority in AFGE, INS, and that "[t]he negotiability of
these proposals is not an issue to be resolved in this unfair labor practice
[proceeding]." Stipulation, paragraph 13. The parties also stipulated that the
General Counsel takes the position that: (1) "management's alleged misconduct
in this case does not turn on the negotiability or nonnegotiability of the six
proposals, but rather on the fact that management implemented the remainder of
its firearms policy on November 1, 1989[,] prior to the action of the [Panel]"
on December 11, 1989, declining jurisdiction; and (2) "while the Authority and
the General Counsel ordinarily will not process an unfair labor practice charge
and a petition for review of a negotiability issue simultaneously[,] pursuant
to section 2423.5 of the Authority's Regulations, no such selection of
procedures was necessary under the circumstances of the instant case."
Id., paragraphs 17-18.

III. Preliminary Matter

The Respondent moves to strike the portions of the General Counsel's
brief concerning the appropriateness of a statusquoante
remedy. The Respondent states that the General Counsel "has stipulated that
questions of negotiability relating to Union proposals that were before the
Impasses Panel are irrelevant to the theory of the [c]omplaint." Motion
to Strike at 1 (emphasis in original). The Respondent argues that the General
Counsel, therefore, "cannot now assert that the proposals were negotiable as an
alternative basis for the violation that was asserted in the [c]omplaint or as
a basis for any remedy to be ordered." Id.

The General Counsel opposes the Respondent's motion, arguing that the
stipulation does not purport, and should not be found, to define the limits of
the appropriate remedy in this case. The General Counsel acknowledges
stipulating that the Respondent's alleged violation of the Statute does not
depend on whether the Respondent's proposals are negotiable. The General
Counsel argues, however, that the negotiability of the proposals is nonetheless
relevant to the question of the appropriate remedy. The General Counsel asserts
that it is "incorrect for Respondent to suggest in the circumstances of this
case that a statusquoante remedy may not be considered."
Opposition to Motion to Strike at 3-4.

We will deny the Respondent's motion. The General Counsel does not
assert the negotiability of the proposals as a basis for the violation, but
rather only as a basis for determining the appropriateness of a statusquoante remedy in this case. We find nothing in the parties'
stipulation that precludes the General Counsel from presenting arguments as to
the appropriateness of a statusquoante remedy in this
case. Moreover, as the parties' stipulation acknowledges, the Authority has
already made a negotiability determination on the proposals in AFGE,
INS, and we are not precluded from considering that decision in determining
an appropriate remedy. The Respondent's arguments as to the appropriate remedy
are considered below. The motion to strike portions of the General Counsel's
brief is denied.

IV. Positions of the Parties

A. General Counsel

According to the General Counsel, when the parties reach an impasse in
their negotiations and one party timely invokes the services of the Panel, the
statusquo must be maintained to the maximum extent possible,
that is, to the extent consistent with the necessary functioning of the agency,
in order to allow the Panel to take whatever action is deemed appropriate.

The General Counsel states that it is undisputed that: (1) despite
mediation assistance on the final day of negotiations, October 20, 1989, the
Respondent and the Councils were unable to reach agreement on six proposals;
(2) at that point, the Respondent notified the Councils that it intended to
implement the entire firearms policy; and (3) the Councils filed their request
for Panel assistance on October 24, 1989, and notified the Respondent of this
action on the same day.

The General Counsel stated that it anticipated the Respondent would
argue that because the Panel declined jurisdiction, the Respondent was relieved
of any duty to maintain the statusquo. Relying on Department
of Health and Human Services, Social Security Administration, and Social
Security Administration, Field Operations, Region II, 35 FLRA 940 (1990)
(DHHS, Region II), the General Counsel asserts that the fact that the
Panel ultimately declined jurisdiction does not excuse the Respondent's failure
to maintain the statusquo. The General Counsel also asserts that
the Respondent's view of the Panel's authority minimizes the important role
Congress envisioned for the Panel, as stated by the Authority in National
Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal
Revenue Service, 35 FLRA 398, 414-16 (1990).

The General Counsel also anticipated the Respondent's argument that the
General Counsel should not have processed this unfair labor practice because it
involves the same issues involved in the negotiability appeal decided by the
Authority. In rebuttal, the General Counsel argues that section 2423.5 of the
Authority's Regulations provides only that "the General Counsel
ordinarily will not process" related unfair labor practice complaints
and negotiability appeals simultaneously. General Counsel's Brief at 8
(emphasis in original).

The General Counsel argues that the unfair labor practice procedures
and the negotiability procedures are not mutually exclusive, particularly where
different issues are involved in the respective proceedings. According to the
General Counsel, this case involves an issue regarding the duty to maintain the
statusquo while the parties are before the Panel, not issues
regarding the negotiability of the parties' proposals. The General Counsel
states that only the remedy in this unfair labor practice case is affected by
the Authority's negotiability decision regarding the parties' proposals and,
therefore, "no interest of administrative economy would [have been] served by
deferring [action on the] unfair labor practice charge" in this case.
Id. at 9.

Finally, the General Counsel asserts that the stipulated record
contains no evidence to support the Respondent's assertion that the
implementation of the entire firearms policy on November 1, 1989, was
consistent with the necessary functioning of the Agency. The General Counsel
contends that the Respondent, therefore, violated section 7116(a)(1), (5), and
(6) of the Statute when it failed to maintain the statusquo
after the Councils invoked the Panel's services.

As to the appropriate remedy, the General Counsel contends that it is
clear, with respect to the proposals found negotiable by the Authority in
AFGE, INS, that the Respondent changed negotiable conditions of
employment without fulfilling its duty to bargain while those proposals were
pending before the Panel. The General Counsel contends that, applying the
factors set forth in Federal Correctional Institution, 8 FLRA 604 (1982)
(FCI), to the proposals found negotiable in AFGE, INS, a
statusquoante remedy is appropriate in this case.

B. Respondent

The Respondent acknowledges that an agency's duty to bargain includes
the obligation to maintain the statusquo while matters are at
impasse before the Panel. Relying on the Authority's decisions in Department
of Health and Human Services, Social Security Administration, Baltimore,
Maryland, 31 FLRA 651 (1988) (Social Security Administration) and
Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18
FLRA 466 (1985) (Department of the Treasury), the Respondent argues,
however, that there can be no violation of the duty to maintain the
statusquo if the proposals at issue before the Panel are
nonnegotiable.

The Respondent contends that because the Panel has no jurisdiction to
decide questions of negotiability, an agency should have no duty to maintain
the statusquo once the Panel has declined jurisdiction on that
basis. The Respondent asserts that the Panel found that the proposals "were not
facially negotiable" and that "a substantive question of negotiability existed
with regard to each proposal." Respondent's Brief at 6. The Respondent
acknowledges that it acted at its peril in implementing the disputed portions
of the revised firearms policy. However, the Respondent argues that the fact
that in AFGE, INS the Authority later found some proposals negotiable
cannot be relied on to find a violation in this case because the General
Counsel stipulated that the negotiability of the proposals was not a factor in
this unfair labor practice case.

According to the Respondent, if the finding of an unfair labor practice
violation depends on whether the disputed proposals were negotiable, action on
the complaint in this case should have been stayed pending the court's decision
on the Councils' appeal from the Authority's negotiability decision. The
Respondent argues, that, at a minimum, determination of the scope of the
appropriate remedy would require a stay. The Respondent contends, therefore,
that proceeding simultaneously on the negotiability appeal and the unfair labor
practice complaint is "duplicative and wasteful." Id. at 7. The
Respondent argues that section 2423.5 of the Authority's Rules and Regulations
is designed to preclude duplicative proceedings, and thus ensure administrative
economy, by requiring a union to select the procedure under which it intends to
proceed.

The Respondent acknowledges that section 2423.5 does not provide that
the selection of one procedure will preclude the Authority from proceeding
under the other procedure. However, the Respondent argues that a decision by
the Authority to proceed under both procedures should be "knowing and
deliberate." Id. at 8. The Respondent notes that in this case it
informed the General Counsel that the Councils needed to select the procedure
under which they intended to proceed. According to the Respondent, the General
Counsel erred in not requiring the Councils to select one procedure under which
to proceed.

The Respondent argues that by refusing to recognize the consequences of
the negotiability determination in the unfair labor practice complaint, the
General Counsel ignored facts important to a final decision in this case. The
Respondent contends that if the complaint is not dismissed, resolution of this
case should be deferred pending the court's decision on the negotiability
appeal.

V. Analysis and Conclusions

We find that, by implementing revisions to its firearms policy while
six proposals concerning those revisions were before the Panel, the Respondent
violated section 7116(a)(1), (5), and (6) of the Statute.

A. The Respondent Was Not Relieved of Its Obligation to
Maintain the Status Quo on the Basis that the Panel Subsequently
Declined Jurisdiction

Once parties reach an impasse in their negotiations and one party
timely invokes the services of the Panel, the statusquo must be
maintained to the maximum extent possible, that is, to the extent consistent
with the necessary functioning of the agency, in order to allow the Panel to
take whatever action is deemed appropriate. Department of the Treasury,
18 FLRA at 468. A failure or refusal to maintain the statusquo
during the time that the parties are before the Panel constitutes a violation
of section 7116(a)(1), (5), and (6) of the Statute. U.S. Department of
Housing and Urban Development and U.S. Department of Housing and Urban
Development, Kansas City Region, Kansas City, Missouri, 23 FLRA 435, 436-37
(1986). SeealsoDHHS, Region II, 35 FLRA at 949-50.

We find no basis on which to conclude that the Respondent was relieved
of its duty to maintain the statusquo while the parties' dispute
was before the Panel in the circumstances of this case. As stipulated, the
parties engaged in negotiations over proposed revisions to the Respondent's
firearms policy, and a mediator from the FMCS agreed with the parties that
mediation had failed. The Councils timely invoked the services of the Panel
upon notice by the Respondent that it intended to implement the revisions of
the firearms policy on November 1, 1989. The Panel declined to assert
jurisdiction over the dispute on the basis that the obligation to bargain over
the six proposals first had to be resolved in an appropriate forum before a
determination could be made whether the parties, in fact, had reached an
impasse.

The Authority has held that an agency's obligation to maintain the
statusquo while matters are before the Panel is not affected by
the nature of the action the Panel eventually takes. DHHS, Region II, 35
FLRA at 950. As the Authority explained in DHHS, Region II:

[T]he purpose of the requirement [that the parties maintain the
statusquo while they are before the Panel] is to facilitate the
Panel's consideration of negotiation impasses and allow the Panel to take
whatever action it deems appropriate to resolve disputes. Allowing an agency to
implement a change based on its speculation as to what action the Panel will
take after implementation would, in our view, undermine the important role
played by the Panel in collective bargaining under the
Statute.

Id. Similarly, in order to preserve the Panel's ability to
resolve impasses, an agency cannot be allowed to implement a change based on
its speculation as to what action the Authority may ultimately take in
determining the negotiability of the proposals that are before the Panel.
Permitting an agency to unilaterally change conditions of employment while an
impasse involving those conditions of employment is before the Panel reduces
the Panel's options for resolving the impasse and is inconsistent with the
purposes of the statusquo requirement.

We find that the cases relied on by the Respondent are inapposite.
Social Security Administration did not involve a matter that was before
the Panel. In Department of the Treasury, the agency was found not to
have violated the Statute by implementing portions of its training and safety
policy while other matters were pending before the Panel because the agency's
action did not constitute a change in that policy and, therefore, the agency
had no obligation to bargain over that action.

Accordingly, we conclude that while the six proposals were before the
Panel the Respondent in this case was not relieved of its obligation to
maintain the statusquo on the basis that the Panel ultimately
declined jurisdiction. In view of this determination, we deny the Respondent's
request that resolution of this case be deferred pending the court's decision
in INS v. FLRA.

B. The Respondent Was Not Prejudiced by the Failure to Hold
the Unfair Labor Practice Matter in Abeyance

Section 2423.5 of our Regulations provides that where a union files an
unfair labor practice charge involving a negotiability issue and a petition for
review of the same negotiability issue, the Authority and the General Counsel
ordinarily will not process both simultaneously. The Respondent contends that,
by not requiring the Councils to select either the unfair labor practice or the
negotiability procedures, the General Counsel abused the discretion provided
under section 2423.5. The Respondent contends that the General Counsel's
failure to require the selection of a procedure constitutes grounds for
dismissal of the complaint.

We find no merit in this contention. We find, as argued by the General
Counsel, that the issue in this unfair labor practice proceeding is not the
same as the issue in the negotiability proceeding. This case concerns whether
the Respondent violated section 7116(a)(1), (5), and (6) of the Statute by
implementing revisions to the Respondent's firearms policy at a time when
negotiations as to six of the Councils' proposals concerning those revisions
were at impasse and the matter was pending before the Panel. The negotiability
case concerned whether the Councils' six proposals were negotiable. Therefore,
we find that the General Counsel did not abuse the discretion provided under
section 2423.5 by not requiring the Councils to make a selection under that
section.

C. The Respondent Violated the Statute

We have found that the Respondent was not relieved of its obligation to
maintain the statusquo on the basis that the Panel subsequently
declined jurisdiction. The Respondent, therefore, was obligated to maintain the
statusquo to the extent consistent with the necessary
functioning of the Respondent while the dispute concerning the six proposals
was before the Panel. DHHS, Region II, 35 FLRA at 948-49. It did not do
so. The Respondent implemented revisions to the entire firearms policy,
including the portions of the policy related to the proposals in dispute before
the Panel. The Respondent does not allege, and it is not apparent to us, that
the necessary functioning of the Respondent required the Respondent to
implement the portions of the policy related to the proposals in dispute before
the Panel. Therefore, we find that, by implementing the firearms policy while
the dispute concerning the six proposals was before the Panel, the Respondent
violated section 7116(a)(1), (5), and (6) of the Statute.

VI. Remedy

The General Counsel states that, consistent with Authority precedent,
where management has failed to fulfill its duty to bargain over the impact and
implementation of a decision, the Authority will determine whether a
statusquoante remedy is warranted by applying the
factors set forth in FCI. The General Counsel contends that, applying
the FCI factors here, a statusquoante remedy is
appropriate as to those proposals found negotiable by the Authority in AFGE,
INS. As noted above, the Respondent requests that the Authority stay any
action on this matter pending a decision by the court in INS v. FLRA.
The Respondent does not address the application of the FCI factors.

We note that the Authority has applied the FCI factors in
determining an appropriate remedy in cases where management has failed to
maintain the statusquo in violation of section 7116(a)(6) of the
Statute. See, for example, DHHS, Region II, 35 FLRA at
951-53. We will apply the FCI factors in this case. After taking into
consideration the factors set forth in FCI, and noting that the
Respondent has not addressed the application of those factors, we find that a
statusquoante remedy is appropriate as to the changes
that the Respondent made in its Manual firearms procedures related to the
proposals found negotiable by the Authority in AFGE, INS. That is, a
statusquoante remedy is appropriate as to the changes
made by the Respondent related to: (1) the second sentence of Proposal 1
(Manual, Section 4C, Carrying Firearms), which concerned the Respondent's duty
to serve a written notice of the withdrawal of the authority to carry a firearm
on the affected employee; (2) the last sentence of Proposal 1 (Manual, Section
4C) and the last sentence of Proposal 2 (Manual, Section 21, Firearms
Qualifications), which concerned the Respondent's duty to make a reasonable
effort to find work not requiring the use of a firearm for an employee whose
authority to carry a firearm has been withdrawn or restricted; and (3) Proposal
5 (Manual, Section 8A(6), Shooting Incidents), which concerned the Respondent's
duty to allow Union representation for employees involved in a shooting
incident.

We will order the Respondent to rescind the changes made in the Manual
firearms procedures related to the proposals specified above and to return to
the procedures in those areas that were in effect prior to its implementation
of the changes. As the General Counsel does not seek such a remedy, we will not
order the Respondent to rescind the changes made in its Manual firearms
procedures related to the proposals found nonnegotiable by the Authority in
AFGE, INS. Because the Respondent violated the Statute by implementing
changes in its Manual firearms procedures related to all of the proposals in
dispute before the Panel, we will also order the Respondent to bargain, upon
request, over appropriate arrangements for employees adversely affected by
those changes.

VII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations Statute, the
U.S. Department of Justice, Immigration and Naturalization Service, Washington,
D.C., shall:

1. Cease and desist from:

(a) Failing and refusing to cooperate in impasse proceedings by
unilaterally implementing changes in its Administrative Manual, Section 4210,
Service Firearms Policy,

while proposals concerning those changes are pending before the Federal
Service Impasses Panel.

(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of the rights assured them by the
Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:

(a) Rescind the changes implemented on November 1, 1989, in the
firearms procedures contained in its Administrative Manual, Section 4210,
Service Firearms Policy, Section 4C, Section 21, and Section 8A(6), related to
the proposals over which the Federal Labor Relations Authority found it must
bargain, and reinstate the procedures as to those sections that were in effect
prior to November 1, 1989.

(b) Upon request, bargain with the American Federation of Government
Employees, National Border Patrol Council and National Immigration and
Naturalization Service Council, the exclusive representatives of its employees,
concerning appropriate arrangements for employees adversely affected by the
changes it made in the firearms procedures related to all of the proposals in
dispute before the Federal Service Impasses Panel when the changes were made.

(c) Post at its facilities wherever bargaining unit employees are
located, copies of the attached Notice on forms to be furnished by the Federal
Labor Relations Authority. Upon receipt of such forms, they shall be signed by
the Commissioner, Immigration and Naturalization Service, and shall be posted
and maintained for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that such Notices
are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Washington, D.C. Regional Office,
Federal Labor Relations Authority, in writing, within 30 days from the date of
this Order, as to what steps have been taken to comply.